New California Law to End Cash Bail

On August 21, California’s legislature finished work on Senate Bill 10, also known as the California Money Bail Reform Act. It eliminates statewide the cash bail system and replaces it with the local courts’ assessment of whether a defendant would pose a serious risk if not incarcerated before trial.

Governor Jerry Brown (D) signed the measure a week later, saying it would reform the state’s pre-trial release system to see “rich and poor alike are treated fairly.” While some other states have recently revised their bail systems (e.g., New Jersey and New Mexico), none have gone as far as California.

Opponents of the cash bail system argue it’s unfair to defendants who lack the funds to obtain bail, and so are jailed until trial. Over 60% of California’s jail inmates could not obtain bail. Pre-trial detention can also pressure defendants to accept plea bargains, whether or not they are guilty as charged.

The new law, scheduled to take effect October 2019, requires pre-trial analysis by county officials of whether a felony defendant’s likelihood of showing up for trial or being re-arrested. Those judged to pose a low risk would be released under the least restrictive possible conditions (like regularly checking in with officials or getting an ankle monitor).

Medium-risk defendants might or might not get released, based on local judgments, while high-risk ones would stay incarcerated until arraigned. Persons already under supervision or accused of certain crimes – some sex crimes, violent felonies, repeat DUIs, and previous violations of pre-trial release conditions – would automatically qualify a defendant as high risk.

A similar bill was introduced last year in the California legislature but stalled. This year, Governor Brown, working with state legislative leaders and the California Supreme Court chief justice, drew up a bill addressing some of the objections to the previous bill, and eventually won passage.

But a funny thing happened on the way. Some of the original bill’s sponsors – like the California chapter of the American Civil Liberties Union and other campaigners against the money bail system – dropped their support, after the changes were disclosed, putting them in the unaccustomed position of agreeing with the bail bond industry that Senate Bill 10, would be no improvement.

The reason? The revised version of the bill had added a “preventive detention” provision which allowed prosecutors to request, and courts to approve, pre-trial detention whenever nothing less could guarantee appearance at trial or public safety.

As I’ve earlier reported, when Maryland’s bail revision bill added a similar provision, the number of inmates held in pre-trial detention didn’t decline, but actually went up, by nearly 15% — apparently because judges, many elected, fearing political fallout if they fail to use preventive detention whenever they’re unsure whether a defendant might pose a danger.

The bail bond industry hasn’t given up fighting the newly enacted law. It plans to try to gather enough petition signatures (almost 366,000) from California voters before the end of November to force a vote challenging the new law; if there’s enough support for a ballot vote, the law will be stayed until voters decide in the 2020 election whether to retain or repeal it.